We’re misunderstanding due process

“Due process” is the only directive that appears in the Constitution twice. The Fifth and 14th amendments both state that no person shall be deprived “of life, liberty, or property, without due process of law.”

Yet as with many celebrated terms in our national lexicon — “freedom,” “equality” and “a well-regulated militia” spring to mind — there’s a certain fuzziness to how we deploy due process. The concept is frequently taken out of its context and just as frequently misunderstood.

But now we’re having something of a due-process moment, and we could use some clarity. As allegations of sexual misconduct spring up from Rockefeller Center to Hollywood, alarmed observers have suggested that due process isn’t being properly extended to the accused. But we should be wary of stretching the precept to situations where it doesn’t naturally apply. And we should question whether due process is being demanded for reasons of justice or as cover for something less sincere.

Due process, first and foremost, is a legal concept, invoked to ensure that government follows the rule of law. It’s when a governmental entity disregards someone’s rights that due process’s associated requirements — fair notice and fair hearing — come into play. But corporations aren’t courts of law, and the “Today” show isn’t a government entity. Human resources officers aren’t dispassionate federal judges; they’re risk managers for the organizations they serve.

For better or worse, that means companies in our brave not-so-new economy have more of an interest in upholding their quarterly profits than abiding by our common notions of legality. An employer doing damage control after a lurid sexual-harassment scandal need not follow any due process apart from what’s written into its private contracts. The Constitution doesn’t oblige NBC to retain Matt Lauer until a court somewhere finds him guilty of a sex crime.

In our private lives, due process tends to be similarly contingent. Most of us agree that the presumption of innocence is an important standard. Society constantly urges us to “see both sides,” to give offenders a chance to explain and to check for exculpatory evidence we may have missed. Yet our personal loyalty to the legal principle of due process may vary according to circumstance — and with good reason. Roy Moore is entitled to his rights under the law, but we certainly aren’t planning to leave him alone with our 14-year-old daughter. In many cases, personal risk justifiably bests abstract principle. We don’t play by constitutional rules in our personal lives.

That case-by-case interpretation also flows in the opposite direction. The sudden (and mostly male, apart from House Democratic leader Nancy Pelosi’s high-profile waffling) fixation on due process is more personal than all the tedious legal harrumphing suggests. When power dynamics shift as quickly as they have in the wake of #MeToo, individuals are thrown off kilter. The people most unnerved and eager to return to the past are those who suddenly realize they may no longer be on top.

And so, many men have rushed to gather what protections they feel they have left, while breathlessly pointing out all the ways the new arrangements are flawed. Thus, the urgent invocations of due process and the importance of protections for the accused, and the lurid visions of innocent men felled by “huntresses” who will “believe all women” at the expense of rule of law.

Except that last part is a fever dream.

We aren’t seeing an epidemic of men being railroaded for flirting. There is no wave of false accusations washing defenseless men from their rightful careers. The cases taking over the news weren’t sparked by untouchable accusers whose pointed fingers have the power to ruin careers. Instead, we’ve uncovered systemic, ongoing patterns of abuse perpetrated by men with power against women with much less of it. The evidence isn’t scanty, and the accusations aren’t random. There is never just one victim. And due process, invoked indulgently, often allows the guilty to linger in power for far longer than they deserve.

In an article for the Establishment, Ijeoma Oluo writes that the fixation on due process is “an attempt to re-center the concerns of men. . . . If there’s anything these stories show, it’s that these men in their years of open abuse were given more than just due process — but the women, many of whom had tried bringing this abuse to those in authority years before, were given no process at all.”

Where sexual misconduct is concerned, arguments for due process are rarely about legal standards or constitutional ideals. More often, they’re about to whom the process is due.